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Employment Law Tip of the Day: Want to create a company policy that will ensure all your personnel decisions are fraught with racism, sexism, ablism, ageism, gender normativity, and size discrimination? Try rating your employee’s looks on a scale of zero to five, and put the ones who don’t conform to an “all-American, clean, wholesome, or the girl or boy next door” look in the back room folding clothes where they are unable to disgust customers and dilute your brand image with their nonconforming presentations.

Make sure that you claim, loudly and often, that you are working on diversity, by providing managers with a “look book” of appropriate faces that include Black, white, and Latino/as. You know, all the races! When somebody points out that you have no Asian faces in your look book or in your marketing campaigns, just point out that for some reason, Asians just don’t like A&F so hiring and marketing to that demographic just doesn’t make good business sense.

A new report in the current issue of the International Journal of Obesity suggests that weight discrimination is on the rise.

“Overweight women are twice as vulnerable as men, and discrimination strikes much earlier in their lives,” the report states.

The reason used by some to justify the bias: weight is modifiable, race isn’t.

So does this reasoning have any merit? If you believe that weight is modifiable, it seems like it would. But I call bullshit.

Let’s say for argument’s sake that weight is modifiable. Take me for example. When I was 17 I started my first “successful” diet and lost 60 pounds; I’ve not stayed at a stable weight since. For almost 20 years I have been either losing or gaining weight, living in a state of constant weight (and wardrobe) fluctuation. So, is weight modifiable? Mine sure is. I don’t even know if my body has a set point, much what that set point could be because I’ve never given my body a chance to find it. Now that my brain has decided that being fat is okay, I am both fascinated and terrified to see what my body ultimately makes of this information. But that’s beside the point, which is that sure, technically weight is modifiable.

But it’s not modifiable in any controllable way. I can set my sights on a particular weight and throw all my energy into getting there and maybe I will, but probably not (in all of my weight’s amazing malleability I have never achieved a “goal weight”). Even if I get close, I have proven time and time (and time and time) again that any weight below 200 pounds is unmaintainable for me without untenable sacrifice. Modifying my weight is less about a precision manipulation and more about setting forces in motion and hoping for the best. So how modifiable is something that we can change, but only with intense effort and never permanently and never in a focused and specific way? Not fucking very.

But even if weight is arguably modifiable, even in a grossly imprecise way, the modifiability justification falls short. Under US law, deafness is a disability and discriminating on the basis of deafness is illegal under the Americans with Disabilities Act. But deafness is also modifiable in some instances with cochlear implants. Should it be legal to refuse to make a reasonable accommodation for a deaf employee who is eligible for a cochlear implant but refuses to get one? Religion is a protected class under Title VII, making it illegal to discriminate against someone on the basis of religion. But religion, as important is it is to many people, is not a genetic trait and so is 100% modifiable. If scientists suddenly discovered a quick and easy gene “therapy” that would change a person’s race, should racial discrimination suddenly become legally acceptable? Relying on modifiability as a justification for weight-based discrimination is convenient, but ultimately unsatisfactory.

Not to mention that the underlying legal philosophy used to justify the bias basically says “Here is an acceptable way to be. You don’t have to be this way, but if you chose not to be, you have to face the consequences.” Who is defining acceptable? And how are they defining it? And who died and made them boss, anyway? What we end up with is anti-discrimination law as a tool of social control – conform or you’re fired, fatty.

But not only is this whole “if you can change it, we can discriminate against you for it” explanation pretty bogus, as Tara at Fatshionista explains, this line of thinking (and the report Lauren linked) fails to consider the complex intersectionalities at play here too. Lauren addresses this at the end of her post when she asks: What if you’re black, a woman, and obese?

Despite the assumptions underlying Title VII and related case law (very little of which was written or interpreted by non-white non-men (I don’t know how many of these white dudes were fat, though)), apportioning discrimination neatly into buckets labeled “gender,” “race,” “color,” “nationality,” or “religion” is impossible. Generally under US law, if you are a black woman who is passed over for promotion in favor of white women and black men, you’re SOL; the employer promoted other women and the employer promoted other black men so under the law? No actionable discrimination. When a report like this suggests (or when the media interprets a report like this to suggest) that “fatism” is more widespread than racism, it is saying that it’s possible to cleave fatness away from race, to say definitively that if an employer discriminatorily fires a fat black woman, it’s because she’s black. Or fat. Or a woman. But not some combination of the three. Consider fat and disability in the same framework. Is an employer illegally refusing to make a reasonable accommodation under the ADA if it could cheaply widen an existing ramp door to allow a fat person who needs a large size wheelchair to access the building but refuses to do so?

Is there a point at which the modifiability justification and the shortcomings of anti-discrimination laws at addressing intersectionalities come together? I was hoping to find that when I started writing but it’s getting late and I’m not there yet so I open up to you, dear readers. I think this is an important conversation to have. I chose to post about this here instead of commenting on Stereohyped because I wanted to think about this using FA principals as a given rather than getting bogged down in “fat is unhealthy/losing weight is easy and awesome” debate and, ultimately, not getting anywhere new.

ETA: I was fixin’ to climb into a nice warm bed with a nice warm dude and two nice warm cats when it occurred to me that I should make a very important clarification. I AM NOT asking whether “fatism” is more prevalent than racism. That question, in the parlance of the internet, is made of fail. I am talking about modifiability as bias justification and intersectionality. I also don’t mean to limit the discussion to race, gender, or disability – that’s just what came out when I started typing. Okay go.

In the summer of 2006, seven young Black lesbians from New Jersey—Patreese Johnson, Renata Hill, Venice Brown, Terrain Dandridge, Chenese Loyal, Lania Daniels, and Khamysha Coates—were hanging out on the pier in New York City’s West Village when Dwayne Buckle, a man selling DVDs on the street, sexually propositioned Patreese. Refusing to take no for an answer, he followed them down the street, insulting and threatening them: “I’ll **** you straight, sweetheart!”

It is important to understand that all seven women knew of another young woman named Sakia Gunn, who had been stabbed to death under very similar circumstances—by a pair of highly aggressive, verbally abusive male strangers. At least some of the seven had known Sakia personally.During the resulting confrontation, Buckle first spat in Renata’s face and threw his lit cigarette at her, then he yanked another’s hair, pulling her towards him, and then began strangling Renata. A fight broke out, during which Patreese Johnson, 4 feet 11 inches tall and 95 pounds, produced a small knife from her bag to stop Buckle from choking her friend—a knife she carried to protect herself when she came home alone from her late-night job.

Two male onlookers, one of whom had a knife, ran over to physically deal with Buckle in order to help the women. Buckle, who ended up hospitalized for five days with stomach and liver lacerations, initially reported on at least two occasions that the men—not the women—had attacked him. What’s more, Patreese’s knife was never tested for DNA, the men who beat Buckle were never questioned by police, and the whole incident was captured on surveillance video. Yet the women ended up on trial for attempted murder. Dwayne Buckle testified against them.

The media coverage was savage, calling the women such things as a “wolf pack of lesbians.” The pro bono lawyers for the young lesbians would later have to buy the public record of the case since the judge, Edward J. McLaughlin (who openly taunted and expressed contempt for the women in front of the jury all throughout the trial), would not release it. As of late August 2007, the defense team still didn’t have a copy of the security camera video footage. And after the better part of one year spent sitting in jail, four of the seven women were sentenced in June 2007—reportedly by an all-white jury of mostly women—to jail terms ranging from 3 1/2 to 11 years. The oldest of the women was 24, and two of them are mothers of small children.

I’ve blogged about the New Jersey 4 before, but I’m ashamed to say I’ve let them slip away from my awareness. Brownfemipower posted info about a new website, Justice 4 the New Jersey 4, that provides information about the women’s case, links to contact the women in jail, and information on how you can help.

My therapist suggested that I channel some of my body image woes into good, old-fashioned anger (I’m not entirely sure how beneficial being angrier could possibly be, unless rage induced brain embolisms are good for you now, but I like her so I’m willing to try it) so here you go, from the Chicago Sun Times:

I’ll sum it up: Joseph Annunzio, nephew of the late Machine politician Rep. Frank Annunzio, had a sweet patronage position at the Chicago Department of Transportation. So sweet he felt like he could call African American coworkers “Mambo Gorilla” and “allegedly [put] a tablecloth on his head and [act] like a Klansman in the co-worker’s office.” He got fired and had a hearing before the Human Resources Board who gave him back his $77,000-a-year job because, despite the testimony of eleven coworkers that he was a racist asshole, none of them testified that Annunzio’s racial slurs were directed at them personally. And so “[t]he board did not think that kind of misconduct should cause someone to forfeit their career.

Big Joe can go to each coworker and spout a rich variety of racist statements, but as long as he’s always talking about somebody else, it’s okay, because we wouldn’t want to actually punish somebody for his racism. That would be unfair. And politically damaging to the members of the HR Board who handed down that decision.

I just wonder who on the HR Board owed whom a favor.

Somebody call Anthony Boswell. Oh no wait, he’s Mayor Daley’s political appointee to head the Office of Compliance, an office created by Mayor Daley charged with “enforcing terms of a federal consent decree banning political considerations in hiring and promotions of most city employees.” (Emphasis mine, and if you don’t see the hilarity in Richard M. creating and staffing an office designed to ensure compliance with an anti-patronage decree, then you must not live in Chicago.)

Once you’re hired, you can do whatever you want. As long as you’ve got clout.

As Queer Woman of Color and Heart have pointed out, despite the incredible (and totally necessary) support for the Jena 6, not quite as much has been made over this very similar injustice in which lesbian women fighting against street harassment were convicted and sentenced disproportionately to their crimes.

Edit: Women of Color Blog points out that Racialiscious did post a link about the NJ women on 6/28/07 in an excellent list of posts about the situation, along with the well taken point that just because nobody that I or other people have been reading have posted about the situation, doesn’t mean that nobody is posting about the situation. I have also been pointing to Women’s Space as having the go-to post with background info and links, and I should have been including more links from Queer Woman of Color or this one from LDNY along with it, at the very least.

Many thanks to Heart for the reminder about the injustice visited on seven New Jersey women who dared defend themselves against street harassment:

Buckle [the harasser] approached one of the women, Patreese Johnson, who stands 4′11″ tall and weighs 95 pounds, gestured toward her crotch and said, “Let me get some of that.” When she and the other women said they weren’t interested, they were lesbians, Buckle shouted, “I’ll fuck you straight, sweetheart.” At that point Johnson’s girlfriend shot back an insult, something about Buckle’s jeans and tennis shoes being cheap, Buckle then called one of the women an “elephant,” and yelled at another that she ”looked like a man.” Then there was a fight. Surveillance cameras show Buckle choking one woman and holding clumps of hair ripped from some of the women’s heads. The women said Buckle spit on them and hucked a lit cigarette at them; Buckle says one of the women spit at him.

During the course of the altercation, the woman Buckle had directly sexually harrassed retrieved a 99-cent steak knife out of her bag and went after Buckle with it in an attempt to defend the woman whom Buckle was choking.

. . .

Three of the women pled guilty to attempted assault and served six months in jail. Four of the women went to trial. None of the women had criminal records, and two are parents.

. . .

[The judge cracked] jokes with Buckle at trial about how expensive Buckle’s jeans and tennis shoes actually had been, yukking it up with the jury when a police officer, called to testify, donned rubber gloves while handling Patreese Johnson’s knife. No forensic tests were ever done on the knife and there was no evidence hers was the knife that cut Buckle, nor was there blood on it. In the clear absence of blood stains, the judge mocked the police officer for donning the gloves and cracked a joke about the officer seeing “germs” there.

. . .

Renata Hill [was] sentenced to 8 years. Patreese Johnson, 19, who wielded a steak knife against Buckle but did not stab him (video surveillance evidences Buckle was stabbed by a man who joined the fray later), was sentenced to 11 years. She, like the other women, had no criminal record.

Note: This post gets more hits than any other on my little blog. I am keeping a close eye on the comments, and while I won’t delete any comments just because I disagree with them, I will delete any that are hateful, racist, unreasonable, or fail to support their contentions with at least some semblance of a logical argument. I am also not going to respond to most comments because I think there is better debate happening elsewhere, and I honestly don’t have time to pay proper attention to such a discussion here. Thanks!

But guess what? That’s still ridiculous. The judge reduced the sentence by tossing out the conspiracy conviction. That means Michael Bell (Black) is still considered guilty, in the eyes of the law, of attempted murder for participating in a beating that sent Justin Barker (white) to the hospital, where he was treated and released for minor injuries. Barker went to a party the next night. Barker also participating in race-based harassment and violence against Bell and other Black students at Jena High. Now that doesn’t excuse a beating necessarily, but it should have an impact on the prosecution’s case against Bell. I’m a little rusty (as in totally in the dark) about Louisiana criminal law thanks to its roots in French common law, but considering that dueling was legal in the state until at least 1890, it would make sense that resorting to fisticuffs in response to somebody hanging a noose from a tree that you tried to sit under would be socially, if not technically legally, acceptable.

But of course, as it was in the dueling rules of the 19th century, so it is for the criminal court system today:

Only gentlemen, not laborers, mechanics, or blacks, were eligible to use pistols on the field of honor. Gentlemen were presumed to be planters, military offices, or professors. The status of ministers, news-paper editors, physicians, and bankers was less certain. Whatever the case, people of the “lesser sort” were denied access to the dueling field; they were to be dealt with by caning or horsewhipping. (Source)

The prosecuting attorney in Jena, Louisiana never should have been allowed to prosecute these kids for attempted murder in the first place. The judge should have ordered a directed verdict for the defendant, or whatever the hell the equivalent of a directed verdict is in Louisiana, when the jury convicted him of attempted murder and conspiracy. At the very least, the judge should have given Bell the lightest sentence possible under Louisiana’s sentencing guidelines. It’s all just such a sham.

Michael Bell has a long, tough court battle ahead of him, and he’s going to need all the help he can get. You can send donations to:

Via Racialicious, which is maintaining Jena Six-related bookmarks on Del.icio.us here. (You can subscribe to a feed of those links to keep up with new information as the folks at Racialicious post it.) Finally, here is a link to the petition referenced at the end of the above video. It’s free to sign, but if you can spare even $5 for these kids’ defense fund, that will help.